Top Hong Kong court allows Uber drivers to challenge definition of a traffic law that convicted them

Jasmine Siu

Hong Kong’s top court has given the green light to 24 Uber drivers to challenge the definition of a traffic law that cemented their convictions.

Chief Justice Geoffrey Ma Tao-li on Friday said the case seemed to have raised “an important question that ought to be resolved”, and granted the drivers leave to appeal against their 2018 conviction for driving passengers without a hire car permit.

The unprecedented challenge, set for September 1 at the Court of Final Appeal, is expected to focus on the components of the offence, with particular attention drawn to the meaning of “for the carriage of passengers for hire or reward” under the Road Traffic Ordinance.

The debate is also expected to touch on whether there is a contractual relationship between Uber and its drivers, as defence lawyers have complained of “substantial and grave injustice” following the lower courts’ ruling in the negative.

Chief Justice of the Court of Final Appeal Geoffrey Ma says the case seems to have raised ‘an important question that ought to be resolved’. Photo: Robert Ng

The ride-hailing service has been struggling to comply with local laws since it arrived in the city in 2014.

Under the ordinance, any person who drives, uses, suffers, or permits to be driven or used, any motor vehicle for the carriage of passengers for hire or reward without a hire car permit is punishable by a maximum fine of HK$5,000 (US$644) and up to three months in prison for the first offence. Subsequent convictions may result in a fine of HK$10,000 and imprisonment of six months.

24 Uber drivers appeal conviction in Hong Kong’s High Court

The present case stemmed from the conviction of 28 drivers, aged 22 to 60, who were fined between HK$3,000 and HK$4,500.

The Court of First Instance last year threw out the appeals lodged by 24 of the drivers, on the grounds that new modes of transport did not outdate old traffic laws.

But their lawyers maintained that the case involved important points of law and appealed to the highest court for clarification.

The debate is expected to touch on whether there is a contractual relationship between Uber and its drivers. Photo: Winson Wong

The points included the proper construction of the ordinance and its implications on residents’ freedom of choice of occupation if it were to impose a complete ban on Uber by making it impossible for the affiliated drivers to obtain official hire car permits.

“We are keen to press that particular question,” Jonathan Caplan QC said on Friday. “The provision is unconstitutional because it places a disproportionate restriction on the right of Hong Kong citizens to choose his occupation.”

But that argument was immediately shot down by Ma, who questioned: “Aren’t you really saying that I want to work in something that is unlawful?”

The court eventually decided to entertain just one of the three proposed questions, with Ma reminding lawyers that the case is not about the provision of permits.

“This is not a judicial review,” he said.

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